Citation Nr: 0928845
Decision Date: 08/03/09 Archive Date: 08/07/09
DOCKET NO. 07-01 913 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to an initial compensable rating for calcified
pleural plaques.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Veteran and S.D.
ATTORNEY FOR THE BOARD
David S. Nelson, Counsel
INTRODUCTION
The Veteran had active service from November 1950 to December
1953.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Detroit, Michigan. This case has been advanced on the
docket.
FINDING OF FACT
Throughout the rating period on appeal, the Veteran's
service-connected respiratory disability was manifested by
complaints of shortness of breath as well as pulmonary
function tests that revealed post-bronchodilator findings of
FVC (Forced Vital Capacity) of 106 and 99 percent of the
predicted and DLCO of 107 and 122 percent predicted.
CONCLUSION OF LAW
The criteria for an initial compensable rating for calcified
pleural plaques have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6833 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), in part,
describes VA's duties to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a). The VCAA applies in the instant
case.
Duty to Notify
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004).
The Board notes that 38 C.F.R. § 3.159 was revised, effective
May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).
The amendments apply to applications for benefits pending
before VA on, or filed after, May 30, 2008. The amendments,
among other things, removed the notice provision requiring VA
to request the veteran to provide any evidence in the
veteran's possession that pertains to the claim. See 38
C.F.R. § 3.159(b)(1).
The VCAA notice requirements of 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b) apply to all five elements of a
"service connection" claim. Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006). As previously defined by the
courts, those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, the Department of Veterans Affairs (VA) is
required to review the information and the evidence presented
with the claim and to provide the claimant with notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. This includes notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
As the January 2006 rating decision granted service
connection for the Veteran's respiratory disability, that
claim is now substantiated. As such, the filing of a notice
of disagreement as to the disability rating assigned does not
trigger additional notice obligations under 38 U.S.C.A. §
5103(a). 38 C.F.R. § 3.159(b)(3) (effective May 30, 2008) per
73 Fed. Reg. 23353 to 23356 (April 30, 2008). Rather, the
Veteran's appeal as to the disability rating assigned
triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and
7105, as well as regulatory duties under 38 C.F.R. § 3.103.
As a consequence, VA is only required to advise the Veteran
of what is necessary to obtain the maximum benefits allowed
by the evidence and the law. The Board observes that as for
rating the Veteran's disability on appeal, the relevant
criteria have been provided to the Veteran, including in the
November 2006 statement of the case and a May 2008 VCAA
letter. In May 2008 VA provided the Veteran notice on
effective date and disability rating elements.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Duty to Assist
The Veteran's service treatment records are associated with
the claims file, as are VA and private medical records. The
Veteran has undergone VA examinations that have addressed the
matter presented on the merits by this appeal. When VA
undertakes to provide a VA examination or obtain a VA
opinion, it must ensure that the examination or opinion is
adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
The Board finds that the September 2007 VA examination
obtained in this case is adequate, as it considered the
pertinent evidence of record, and included an examination of
the Veteran and elicited his subjective complaints. While
the Veteran's representative has asserted that the September
2007 VA examination does not fully describe the Veteran's
functional limitations due to his calcified pleural plaques,
the September 2007 VA examination does describe the Veteran's
disability on appeal in sufficient detail so that the Board
is able to fully evaluate the claimed disability. The Board
notes in passing that the Veteran's disability on appeal is
essentially rated (as far as the schedular rating criteria
are concerned) on the basis of a mechanical application of
the rating criteria. Accordingly, the Board finds that VA's
duty to assist with respect to obtaining a VA examination
with respect to the issue on appeal has been met. 38 C.F.R.
§ 3.159(c) (4).
The Veteran's representative has requested that the Veteran
be afforded another VA examination, asserting that the
Veteran's disability has worsened since his September 2007 VA
examination. The Board notes that there is no evidence in
the claims file supporting such an assertion, and evidence
such as the November 2007 letter from the Veteran's private
physician does not show such a worsening. The Board finds
that while another VA examination is not necessary in this
case, the Veteran is always free to file another claim should
he feel that the severity of his respiratory condition has
worsened.
The Veteran has not referenced any other pertinent,
obtainable evidence that remains outstanding. VA's duties to
notify and assist are met, and the Board will address the
merits of the claim.
Legal Criteria
Disability evaluations are determined by comparing a
veteran's present symptoms with criteria set forth in the
VA's Schedule for Rating Disabilities (Rating Schedule),
which is based on average impairment in earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. Because the instant
appeal is from the initial rating assigned with the grant of
service connection, the possibility of "staged" ratings for
separate periods during the appeal period, based on the facts
found, must be considered. See Fenderson v. West, 12 Vet.
App. 119 (1999).
When a question arises as to which of two ratings applies
under a particular code, the higher rating is assigned if the
disability more closely approximates the criteria for the
higher rating. 38 C.F.R. § 4.7. After careful consideration
of the evidence, any reasonable doubt remaining is resolved
in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§
3.102, 4.3.
Although the Board has an obligation to provide reasons and
bases supporting this decision, there is no need to discuss,
in detail, all the evidence of record. Indeed, the Federal
Circuit has held that the Board must review the entire
record, but does not have to discuss each piece of evidence.
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).
Therefore, the Board will summarize the relevant evidence
where appropriate, and the Board's analysis below will focus
specifically on what the evidence shows, or fails to show, as
to this claim.
The January 2006 rating decision granted service connection
for calcified pleural plaques and assigned a noncompensable
rating under Diagnostic Code 6825, effective July 6, 2005.
The Veteran's service-connected disability is rated according
to the analogous condition of asbestosis under Diagnostic
Code 6833. The General Rating Formula for Interstitial Lung
Disease pertaining to Diagnostic Codes 6825 through 6833
provides that Forced Vital Capacity (FVC) of 75-to 80-percent
predicted value, or; Diffusion Capacity of the Lung for
Carbon Monoxide by the Single Breath Method (DLCO (SB)) of
66-to 80-percent predicted, is rated 10 percent disabling.
FVC of 65-to 74-percent predicted, or; DLCO (SB) of 56-to 65-
percent predicted, is rated 30 percent disabling.
During the pendency of this appeal, VA amended the ratings
schedule concerning respiratory conditions effective October
6, 2006. VA added provisions that clarify the use of
pulmonary function tests (PFTs) in evaluating respiratory
conditions. 38 C.F.R. § 4.96(d) codifies the special
provisions for the application of evaluation criteria for
Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845.
A May 2005 private chest X-ray record noted that the Veteran
complained of a chronic cough. The chest X-ray revealed a
pleural plaque or pleural scarring over the right midlung
field.
At a November 2005 VA examination the Veteran indicated that
he had a productive cough of clear or yellow sputum several
times a day. He had shortness of breath, even while sitting.
Physical examination revealed that his lungs were clear
without wheezes, rales, or rhonchi. The Veteran's PFT
revealed post-bronchodilator Forced Vital Capacity (FVC) of
106 percent predicted and DLCO of 107 percent predicted. The
diagnosis was asbestos exposure.
At his May 2007 RO hearing, the Veteran indicated that he had
shortness of breath, even when walking short distances. The
Veteran's wife indicated that the Veteran had to rest after
carrying things into their house.
At a September 2007 VA examination, the Veteran indicated
that he used no medications or inhalers for his breathing
condition, and noted that he occasionally had a productive
cough. The Veteran stated that he had shortness of breath
upon exertion, but denied chest pain with breathing.
Pulmonary examination revealed that respirations were
unlabored. Lungs were clear to auscultation, without rales
or rhonci; there were no wheezes, and breath sounds were not
distant. The Veteran's October 2007 PFT revealed post-
bronchodilator Forced Vital Capacity (FVC) of 99 percent
predicted and DLCO of 122 percent predicted. The diagnosis
was asbestos exposure with pleural plaque.
In a letter dated in November 2007, W.C.D., D.O. indicated
that he had treated the Veteran since 2005. The letter
summarized the Veteran's medical history concerning asbestos
exposure but did not contain any findings of current
pulmonary disability.
Based on this record, the Board finds that the Veteran is not
entitled to an initial compensable evaluation for service-
connected calcified pleural plaques. Pulmonary function
testing does not demonstrate that the Veteran meets the
requirements for a 10 percent evaluation, as VA examinations
show that FVC was 106 and 99 percent of the predicted value
and DLCO was 107 and 122 percent of the predicted value. As
such, a higher evaluation for this disability is not
warranted under Diagnostic Code 6833 for any time during the
appeal.
The Board notes that in adjudicating a claim the Board must
assess the competence and credibility of the Veteran. See
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006);
Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).
The Board acknowledges that the Veteran is competent to give
evidence about what he observes or experiences; for example,
he is competent to report that he experiences certain
symptoms such as shortness of breath. See, e.g., Layno v.
Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran
to be credible in his reports of the symptoms he experiences.
However, as with the medical evidence of record, the
Veteran's account of his symptomatology describes a rating
consistent with the noncompensable rating he is currently
assigned.
The Board has been mindful of the "benefit-of-the-doubt"
rule, but, in this case, there is not such an approximate
balance of the positive evidence and the negative evidence to
permit a favorable determination. Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
The Veteran's representative has asserted that the RO did not
consider whether an extraschedular rating was applicable in
this case. Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996),
the Board cannot make a determination as to an extraschedular
evaluation in the first instance. See also VAOPGCPREC 6-96.
The RO, however, included 38 C.F.R. § 3.321(b)(1) in the
November 2006 Statement of the Case (SOC) and appears to have
considered the regulation in the Veteran's case. As for
extraschedular consideration, the threshold determination is
whether the disability picture presented in the record is
adequately contemplated by the rating schedule. Thun v.
Shinseki, --- F.3d ----, 2008 WL 7135 (C.A. Fed. 2009). The
Board finds that the Veteran's service-connected respiratory
disability is not so unusual or exceptional in nature as to
render his schedular rating inadequate. The Veteran's
disability has been evaluated under the applicable diagnostic
code that has specifically contemplated the level of
occupational impairment caused by his disability. The
evidence does not reflect that the Veteran's respiratory
disability, alone, has caused marked interference with
employment or necessitated any frequent periods of
hospitalization, such that application of the regular
schedular standards is rendered impracticable. Therefore,
referral for assignment of an extra-schedular evaluation in
this case is not in order. Floyd v. Brown, 9 Vet. App. 88,
95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996).
ORDER
An initial compensable rating for calcified pleural plaques
is denied.
____________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs